내용심의 제재조치의 법적쟁점에 관한 연구

Abstract

The Korea Communication Standards Commission(KCSC)’s functions and operations are prescribed in the Act on the Establishiment and Operation of Korea Communications Commission. The subjects of deliberation and types of sanctions are stipulated in individual laws such as Broadcast Act, Act on Promotion of Utilization of Informaion and Communications Network and Internet Multimedia Broadcast Services Act etc. The authority to deliberate the contents of the law and make a decision and the authority to order sanctions are divided. The former is carried out by KCSC and the latter is carried out by The Korea Communications Commission(KCC). As such, since the authority system takes a dualistic form, the characteristics of administrative actions from the exercise of authorities are considered different. The authority to deliberate contents and make a decision is considered to have characteristics of an administrative guidance and the authority to order sanctions is generally considered to have characteristics of a measure which is subject to an appeal lawsuit. However, as a result of the court ruling that an administrative guidance like a correction request which belongs to KCSC’s exclusive authority has characteristics of a measure, the traditional deliberation system came to have limitation in harmonious regulation. Moreover, uncertainties of some provisions increased confusion. This study focused on removing legal limitation of deliberation system along with pointing out uncertainties of some provisions related to deliberation. As for measures to improve the broadcasting and communications system, firstly a specific and clear guideline for deliberation is needed. Even though the Constitutional Court made a decision that legal provisions related to deliberation are constitutional, there are still views that argue the judging guideline of the content regulation is still unclear. In terms of regulating freedom of expression, the principle of clarity should be upheld strongly and therefore, the danger of arbitrary enforcement should be avoided and illegal information should be subject to sanctions anytime by revising related legal provisions clearly. Secondly, Act on KCSC(tentative name) should be enacted and its authority should be strengthened. KCSC has been protecting broadcasting and communications in the realm of broadcasting and communications. As this public obligation is still effective in the era of convergence of broadcasting and communications, authority and responsibility corresponding to this should be given. Provisions of individual laws related to deliberation should be revised. By transferring KCC’s separated authority to take a measure to KCSC, overlapping of authorities to take a measure should be avoided and actual independence should be secured by enacting a separate law like Act on KCSC. Thirdly, change of regulating method and improvement of penalty system are needed. The limitation of vertical regulating method which applies a deliberation guideline differently by each content on the boundary of broadcasting and communications makes the change of regulating method necessary. In addition, protective procedures like statement of opinion for a person subject to imposition measure of penalty surcharges should be strengthened.